Blistering Dissent In TX Redistricting Case: Majority Opinion A “Prime Candidate” for “Nobel Prize for Fiction”
Judge Jerry E. Smith: “The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law…. This is the most blatant exercise of judicial activism that I have ever witnessed.”
A three-judge panel decided 2-1 to throw out the Texas redistricting map based on alleged racial gerrymandering. Democrats have been crowing about it because the Texas redistricting led to the California redistricting (which is being challenged in court as impermissible racial gerrymandering), and it Texas fails and California survives, there would be approximately a 5-seat swing to Democrats.
The majority opinion was written by Judge Jeffrey Brown, a Trump first-term appointee.
The case already has been appealed to the Supreme Court. Appeals from 3-judge panels go directly to SCOTUS, bypassing the appeals court.
A delayed dissenting opinion was just filed by Judge Jerry Smith, and it is a doozy. He starts by quoting a line from a Bette Davis movie:
“Fasten your seatbelts. It’s going to be a bumpy night!”
Full embed at the bottom of this post, but here are some key excerpts (emphasis added throughout).
He starts with a lengthy explanation of why his Dissent was not issued at the same time as the Majority Opinion, and he has the culprit:
I append this Preliminary Statement to dispel any suspicion that I’m responsible for any delay in issuing the preliminary injunction or that I am or saw slow-walking the ruling. I also need to highlight the pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown.2
In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved. In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves….
When I was a newer on the bench, a friend asked me, “Now that you’ve been a judge for a few years, do you have any particular advice?” I replied, “Always sit with your back to the wall.”
Okay now, why don’t you tell us how you really feel.
He then issues a DISSENT:
The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law.
I dissent.
In the interest of time, this dissent is, admittedly, disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it.
The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.
Judge Brown could have saved himself and the readers a lot of time and effort by merely stating the following:
I just don’t like what the Legislature did here. It was unnecessary, and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan and racially questionable actions of these zealous lawmakers. Just as I did to the lawmakers in Galveston County in Petteway, I’m using my considerable clout as a federal district judge to put a stop to bad policy judgments. After all, I get paid to do what I think is right.
In 37 years as a federal judge, I’ve served on hundreds of three-judge panels. This is the most blatant exercise of judicial activism that I have ever witnessed.
There’s the old joke: What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge. Or a different version of that joke: An angel rushes to the head of the Heavenly Host and says, “We have a problem. God has delusions of grandeur.” The head angel calmly replies, “What makes you say that?” The first angel whispers, “He’s wearing his robe and keeps imagining he’s a federal judge.” Only this time, it isn’t funny.
100 pages later he’s still going strong:
This order, replete with legal and factual error, and accompanied by naked procedural abuse, demands reversal.
Darkness descends on the Rule of Law. A bumpy night, indeed.
Read the whole thing, and wait for SCOTUS.
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Comments
Better Davis is one of my all time favorite actresses. 😉
You know, I kinda thought there would be another shoe to drop on this case. It was so ridiculous to contemplate at first.
Now we have it going to SCOTUS, and my money is on the judges wishing they had never gone to law school by the time this is finished.
They went to law school? Who knew?
If there is one thing we have come to learn about the left is that they feel no shame. They are incapable of feeling shame for anything they have done where they believe there actions were right.
It’s just a feature of the left.
But Brown was appointed by Trump 1.0:
“The majority opinion was written by Judge Jeffrey Brown, a Trump first-term appointee.”
Yeah, I used to enjoy Bette, too, but, man, talk about a liberal?!? WOW!
Probably a middle finger from RINOs and Turtle.
Have you heard of the term “blue slip”? The district judges are invariably the preferred nominees of the senators for that state. That’s usually why there are so many bad ones in Democrat states. This case is a little different because the judicial refuse happens to be Cruz’s choice. Makes me wonder about Cruz.
Of course, Cornyn probably had his slimy establishment hands in the recommendation of this judicial garbage too so I shouldn’t blame Cruz alone.
“Now we have it going to SCOTUS, and my money is on the judges wishing they had never gone to law school by the time this is finished.”
Why? They will be reversed and go on their merry way with no repercussions to continue legislating from the bench.
Do they have to try en banc first before taking an appeal to the USSC?
No. Redistricting cases are first heard by a special three-judge district court which includes at least one appeals court judge. Appeals from this panel go straight to SCOTUS.
Gavels at ten paces?
Seriously, though, activist “judges” need to be slapped down, hard.
With a frozen mackerel.
I was trying to read the full opinion, but my monitor kept catching on fire. Nice dissent.
I read it and it is one of the easiest to understand dissents written in plain language I’ve ever seen. I think it’s safe to say that Judge Brown will not be getting a Christmas card from Judge Smith. The disdain and lack of respect is stated outright.
If we get any written opinions from SCOTUS I can only imagine what Justice Jackson is going to lay on us this time.
The horror! The horror!
If there is an emoji for “foaming at the mouth speechless,” she will find it.
But reading it as a dissent will be an early Christmas present.
Started reading it. 104 pages takes time. Judge Brown should run for cover. Judge Smith has his number. This case is far from done.
Anybody still believe judges should get life tenure?
I was in support until the word “tenure”.
– chuckle – Good one!
Like I said, ignore the illegitimate decision
No, you can’t ignore it. If Paxton were to ignore it, the two majority judges could and would send a US marshal to arrest him. The only recourse is appeal to SCOTUS, which has already been filed.
To add to the urgency, and persuade SCOTUS to take it up quickly, Dhillon should now sue TX demanding that it not use the 2021 map. That way SCOTUS has little choice but to intervene, because TX would have a court order to do A and a DOJ lawsuit to do B.
Huh, US Marshals meet Texas rangers, wonder who wins. My position hasn’t changed, don’t give these illegitimate judges a God damn thing
The Rangers are sworn to uphold the law just like anyone else, so they will not oppose a valid arrest warrant for contempt of court. If they do then they all get arrested. The court has inherent authority to enforce its contempt orders.
The recourse is not to ignore it but to appeal to SCOTUS, and that has been done.
A hypothetical, if you would, Milhouse.
At what point does that answer change? At what point is a bench ruling so flagrant that changes your answer? The Chicago ICE ruling was starting to move in the direction of they weren’t allowed to defend themselves if attacked, a clear violation of the Bill of Rights.
No less a figure than Thomas Jefferson observed that we don’t just have the ability to ignore laws that conflict with our natural rights, but we have the *duty* to do so. While, clearly, this ruling doesn’t, what would that ruling look like?
In the words of the Poets of the Fall: “Where do we draw the line?”
If an order is ultra vires then it’s not an order and you can ignore it. But you’d better be sure it is ultra vires. In this case it’s clearly not. Redistricting is clearly reviewable by the courts. Just because you disagree with a decision doesn’t change the fact that the court is empowered to make it.
Ultra vires doesn’t mean the judge is wrong, it means he’s trying to do something he can’t do even when he’s right.
As for what to do if you’re under attack and a court order says you can’t defend yourself, necessity is always a defense to any crime except murder. So you commit the crime of contempt and plead necessity as your defense.
You appear to be arguing that illegal orders illegal. That’s a tautology.
Today, a judge said Mr. Trump’s deployment of the National Guard to DC unconstitutional (I suspect it silent).
Mr. Trump has the right and duty to deploy the guard as he sees fit (other than to the Capital building).
This is the one where it feels appropriate to say, no really, no jurisdiction.
Ultra vires is not the same as illegal. But the question was when are you allowed to defy a court order, and when must you obey it even if it’s contrary to the law, and the answer is that so long as it isn’t ultra vires you must obey it even if it’s wrong.
Even a court order that violates the constitution, such as a gag order not warranted by law, must be obeyed. That’s established law.
But an ultra vires order is not an order at all. It’s not that the judge got the law wrong, it’s that he has no authority to issue such an order even if he’s right. And that may be defied.
Such orders are rare, but in principle they can happen. And with some of these orders against Trump they may easily be ultra vires; I have long argued that Trump’s people should wait patiently for an order to come along that’s clearly and unarguably ultra vires, and make a test case of it.
And in here we have reached a parting of the ways.
Federal Judges are not *God*. There must be some point where the judge is so obviously wrong that it is one’s *duty* to ignore it.
And yes, I hope where we never *reach* that point.
But it must exist. And certain judges seem to be pushing us towards it.
They’re not God, Who is never wrong. But they’re the Pope, who is deemed infallible when speaking from his cathedra on matters of faith and doctrine. Or they’re the Sanhedrin, whose decisions on the law God explicitly commanded us to follow whether they’re right or wrong. The judicial power is to say what the law is, so the law requires obedience to the judiciary’s decisions even if they’re wrong. Even if they’re wrong, the law is what they say it is.
Of course with God’s law there is no option but to obey. With man’s law, the option exists to abandon the law altogether and live as a lawless savage, but one can’t then pretend that one is in fact upholding the law.
No. SCotUS might be the Pope. District court judges are merely bishops. And bishops *can be wrong*.
I understand you do not believe that there could be a ruling so evil that the executive branch *Must* ignore it.
But there could be such a ruling. I hope we never see it.
But we’ve gotten close, in the releasing of criminals. With the prohibition of the National Guard.
We’ve gotten far too close.
The US Marshals are under the Executive Branch, i.e. Trump. Trump can give the order to tell the U.S. Marshals to stand down.
That being said, so long as conservatives still observe the U.S. Constitution as the “Supreme Law of the Land,” the Texas AG will not ignore the ruling. Democrats, on the other hand, will start ignoring laws they don’t like and rest assured you will be there to somehow excuse it.
No, Trump can’t tell them to stand down. The courts have an independent authority to command the Marshals.
Also if the US Attorney refuses to prosecute contempt of court charges, the court can hire a private attorney to do it. But one it’s in the stage of criminal contempt rather than civil, the president can pardon it. So long as it’s still civil contempt he can’t.
Yes, Trump can tell them to stand down. The courts has no enforcement arm, and the Marshals serve under the Executive Branch.
And if the courts have independent authority over a law enforcement action, that is blatantly unconstitutional as the Courts, neither the Article III or the ones created by the Congress, habe been given enforcement authority.
That being said, I would love for the courts to try and tell the US Marshals to ignore a standing order from the President. Should prove very eye opening to all Americans involved if they really want their courts turning into Judge Dredd.
No, Chris, the Marshals serve under the executive branch, but their primary role and mission is “to provide for the security and to obey, execute, and enforce all orders” of the courts. They are required by law to do that, and the president cannot order them to break the law.
See Pa. Bur. of Corr. v. Marshals Svc., 474 U.S. 34 (1985): “The Marshals must obey the mandates of federal courts.”
Also see Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987), about a court’s independent authority to prosecute someone for contempt if the US Attorney refuses to do so:
As this Court declared in Michaelson v. United States ex rel. Chicago, St. P., M., & O. R. Co., 266 U. S. 42 (1924):
The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.
“If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 450 (1911).
As a result, “there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience.” Ibid.
Courts cannot be at the mercy of another Branch in deciding whether such proceedings should be initiated. The ability to appoint a private attorney to prosecute a contempt action satisfies the need for an independent means of self-protection, without which courts would be “mere boards of arbitration whose judgments and decrees would be only advisory.” Ibid.
In practical terms, Paxton would not ignore the decision. He would appeal it, and the appeals court would issue a stay while it was being considered. If the two majority judges were so blithering stupid as to order the US Marshals to arrest the *Governor* of the state in the narrow slice of time between the original decision and the appeal being filed, I have no doubt the US Marshall service would become *incredibly* inept for a few days, checking their roster, verifying all the marshals involved are up to date on all their training, no leave is scheduled, coordinating with the Texas Rangers, which of course would require several meetings, et al… At which point, the appeals court would have taken up the case and the Marshals report back to the two twits that their order is no longer applicable. And the appeals court would *not* appreciate what the two judges ordered.
Wow that’s some dissent. As Texan I have an interest in this redistricting action. First I note that Trump appointed judge Jeffrey Brown showing how bad Trump was in evaluating people. He got surrounded by liars, phonies, backstabbers, and outright traitors in his first term. He’s much better in his second term, but not enough. Pam Bondi comes across as a disaster, something entirely predictable from her history.
Getting back to judge Smith, and his dissent. I only have read a little, but what a pleasure to see a departure from the usual dry, boring, turgid judicial writing. I love his invective and humor in dealing with these horrible federal judges given to us by a series of dumb presidents and Senates. I need to read much more. So far so good.
He was given names by the Heritage foundation and McConnell so there we go
If you like this dissent, you’ll love this quote from his dissent in David Sambrano et al. v. United Airlines:
“If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning, ‘I would hide my head in a bag.'”
(courtesy of Wikipedia)
I love this judge. He doesn’t hold back when merited.
oden is one of the illiterates who is under the delusion that a President’s power over his personnel picks is equivalent to a typical CEOs.
A President can ONLY get appointees that the Senate will confirm. If they use any of a number of Senate arcana, his nominees will sit there, and whatever civil service hack is at the top of the food chain will be in charge.
Meanwhile, that nominee will find that life has become very interesting for his or her entire family, since SturmAntifa/BLM/etc, will have the doxxing done for them under pretense of “vetting”, and will show up at home/work/everywhere to persuade the nominee that they really didn’t want the job. Example: https://www.latimes.com/politics/la-na-pol-trump-epa-california-20180123-story.html
“The assignment is to carry out the Trump agenda — industry-friendly and averse to action to combat climate change — in one of the the nation’s most environmentally active states. The post is guaranteed to come with daily confrontation with the state’s battle-ready leaders, not to mention the hordes of protesters who can make just getting to and from work in San Francisco a professional hazard.”
Shocked you didn’t highlight the insane conduct of the judge.
They spent MORE THAN A MONTH writing their 160 page decision, telling Judge Smith they would sent it so he could write his dissent.
After more than a month abruptly told him, ‘well now it’s an ’emergency’ and we’re publishing this decision without your dissent, just noting that ‘it was dissented’.
This is insane and blatant judicial misconduct.
And petty. Don’t forget how petty it is.
I haven’t had time to read the majority decision or the dissent, but the flaw in the majority decision is obvious. And no, it is not that federal courts have no authority to interfere with congressional redistricting. They clearly do. Nor is the flaw in the reasoning. The flaw is in the facts. As this dissent says, the majority decision is a work of fiction and SCOTUS should reverse it.
SCOTUS reverses it with 6-3 ruling.
Didn’t take Alito long to step in. I wish there were a way to automatically remove a judge from the bench when he/she strays so far from the actual law a higher court has to step in and stop them.
That is one Heck of a dissent. An overlooked and frankly unresolved problem with the majority decision to issue an injuction to TX baring use of the ’25 CD maps is that when HB4 was passed and signed into law creating the new 2025 CD maps didn’t just replace the prior CD maps of 2021 but also dissolved/negated the prior ’21 CD maps. By telling TX ‘no you can’t use the ’25 CD maps’ the majority of this panel has effectively left TX without ANY legally valid CD maps, despite the attempt to ‘require’ TX to use the ’21 CD maps which is totes Cray Cray b/c those maps are non existent legally and even if they weren’t candidates have been operating off the ’25 CD Map for nearly 3 months, not to mention the wasted effort of County clerks/election officials and confusion of general public as to what CD they are in.
IMO the majority decision was a deliberate hand grenade of election chaos tossed at the TX leadership as a punitive measure given the questionable basis to support it, lack of remediation opportunity for TX legislature and the very bizarre timeline which butts up against Jan filing deadlines. I suspect that SCOTUS will quickly block the order to restore the status quo (which legally are the new ’25 CD maps) until/unless they hear arguments or if their decision in Louisiana v Callais upsets the entire VRA majority minority CD apple cart.
What the majority decision did was akin to what happened in Charlottesville, VA when the a judge threw out their zoning laws because of severe flaws and then everyone realized the Board hadn’t passed new ones leaving the city without any zoning laws.
So is the lede photo the judge who got blasted, or the judge who blasted him?
Really, folks, captions are valuable.
The photo is from Wikipedia. Jerry Edwin Smith
Milhouse,. I get the feeling when a poster here sees your name, you automatically receive a down vote, doesn’t matter if you’re right or wrong.
If I were you, I’d wear that badge with pride
Milhouse is correct the vast majority of the time. He provides a lot of accurate analysis of the actual legal issues which commentators would do well to spend time becoming informed on the legal and constitutional education taking advantage of his expertise.
I appreciate Milhouse even when I disagree with him.
Milhouse seems to me (a remote non legal!) to be one of the most balanced comentators, prepared to walk the line!
Keep it up Milhouse, I always look for your comment.
And Wikipedia gives us this information:
In November 2011, Smith, sitting on a special three-judge district court, dissented in Perez v. Perry, 835 F. Supp. 2d 209 (W.D. Tex. 2011), in which the majority adopted an interim redistricting map for the Texas House of Representatives. In his dissent, Judge Smith characterized the majority’s map as being of the “purest of intentions” but “extreme” and “untethered to the applicable caselaw.” Agreeing with Judge Smith, the Supreme Court unanimously vacated the district court’s majority opinion in Perry v. Perez, 565 U.S. 388 (2012).
Let’s hope history repeats itself.
I don”t share the glee over this. He should have dissented strongly, and even bitingly, while remaining within the bounds of judicial temperament. His opinion sounds as though it were composed in a barroom.
Frankly, my dear Howard, I don’t give a damn. Some judges should be spanked, and often, and by someone who knows how. As God is my witness, I shall never be bullied again.
So the two judges who crashed the redistricting party, one was a Obama appointee and the other was a Trump appointee. I wonder if the Trump judge was put up by Cornyn? That would be fact number one why he should not be re-elected.
Perhaps you meant fact number 51, or 101.
Smith looks like one of those three martinis at lunch lawyers.
We live in interesting times.
Did he really misspell ‘weak’ as ‘week’? Pg 16, Paragraph 6
Spell check can’t always come to the rescue. But wasn’t this proofed by a paralegal or other staff? They may have missed it. After doing proofing and editing professionally for nearly nine years, such things usually leap off the page at me (except when I’m the one doing the composition – in fact, I did just catch a mistake I made in the text above).
I was a litigation paralegal for 20 years. I learned to never trust spellcheck.
Just reading at page 29. In the paragraph “District 3”:
“…Plano area than it had before.”
I think this revision is almost certainly correct.
I suspect SCOTUS will put the TX map changes on hold until they can hear the case on the merits. Perhaps the CA changes too, once that case gets to them. Their current VRA case might even have to be reheard, so a coherent decision can be made as to what constitutes racial gerrymandering. The map changes for the 2026 election could end up being none or minimal.
I’ve only partially reviewed both opinions. The question is whether there was an impermissible racial jerrymander. Precedent indicates that the map drawer cannot use racial criteria when creating lines. The map drawer testified that he used partisan criteria, explained in great depth, but did not use racial data.
The majority in so many words is saying that because there is a racial impact, there must be racial intent. That creates a quandary, because the map drawer must therefore test the map on the basis of something that he is explicitly prohibited from using.
In part they reach this intent also by looking primarily at the statements of those not actually involved in the process (again, contrary to precedent), namely Trump and Congressional officials, instead of the statements (or instructions provided to) the person drawing the maps, or the Texas legislature that requested the map, or the legislature that approved the map.
Rather tough to ignore the direct testimony of the map drawer saying “I did this for partisan purposes” and demonstrating that through actions, and instead infer that they must have done this to hurt certain minorities.
Yes, everyone agrees on that.
No, they did not say that. The courts have already rejected that idea. Here the majority alleges that there was conscious racial intent. If that were true then the map would undoubtedly be illegal; but it isn’t true.
That isn’t really true. The entire process was initiated by the Dhillon letter, so you can’t claim that letter is irrelevant. Abbot used that letter to justify the special session, and the legislators themselves referred to it. That was their justification for engaging in a mid-decade redistricting in the first place.
Further proof of such intent is from the fact that of the five seats affected, four are precisely the “coalition” seats that Dhillon complained of. As the majority said, if the intent was purely partisan and not racial, why go after those seats specifically and not Dem seats with a white majority?
The answer to them is that they have the entire story reversed. Yes, this redrawing was conscious of race. Race wasn’t entirely uninvolved. But the role race played was in drawing the 2021 map, not this one.
The 2021 map, and in particular those four seats, was drawn with specific racial intent, because at the time that was thought to be legally required. Now that the 5th circuit said those four seats were not required, Dhillon wrote (rightly or wrongly) that they are now illegal, not because they happen to have non-white majorities but because they were consciously drawn to have them.
The majority correctly said that if those “coalition” seats happened by themselves they would be valid. That’s true. But they didn’t. They were deliberately drawn to have non-white majorities, and that’s illegal.
And the TX legislature’s purpose in drawing the new map was not to create a racial gerrymander but to get rid of one. And that’s why the majority is wrong.